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From its office in Clayton, Missouri, Danna McKitrick, P.C., delivers legal representation to new and growing businesses, financial institutions, non-profit and government-related entities, business owners, individuals, and families throughout the greater St. Louis region and the Midwest.

Danna McKitrick attorneys practice across many areas of law, both industry- and service-oriented.

A story concerning the death of a female athlete by suicide, her alleged rape, and the role played by the university she attended in the tragic facts has placed the issue of patient confidentiality squarely in the headlines. The story highlights the care that must be taken to protect a patient’s ability to speak candidly and honestly to his or her medical provider without fear that such information will be divulged to anyone else without the patient’s permission.

The female student athlete had committed suicide in 2011, approximately 16 months after her alleged rape in 2010 by another student athlete at the school. According to an email posted to Mizzou’s website on January 24, 2014, an ESPN producer of “Outside the Lines” wanted to know if University of Missouri officials planned to investigate or notify law enforcement about the alleged rape. Just hours before publishing the story, the ESPN producer asked university officials:

ESPN “had documentation that [the decedent] told multiple university medical employees (including mental health counselors and a nurse) about an alleged assault while she was still a student– following those interviews, did university administrators reach out to any of these individuals to get further information about the alleged assault?”

A university athletics department spokesman responded in an email to “Outside the Lines,” saying:

[W]hen an adult student, such as [the decedent], is seeking treatment from MU medical personnel and informs them about a sexual assault, those medical personnel have duties of privacy and confidentiality to the student under state law, professional rules, and HIPAA. They are not required, or even allowed, to report the sexual assault to law enforcement or campus administrators without the authorization of the student.

Further, the official responded to the suggestion that Title IX somehow extinguishes these duties of confidentiality:

You [the ESPN producer] previously have mentioned the affirmative obligation of universities to address student sexual assaults. That obligation particularly arises from Title IX. While the U.S. Department of Education interprets Title IX to require most university personnel to report student sexual assaults, that doesn’t apply to information that medical personnel receive in the course of treating patients. Nothing in Title IX sets aside a health care provider’s duty of confidentiality to a patient or otherwise requires or allows university medical personnel to report sexual assault of a student patient without that individual’s authorization.

MU’s Title IX website informs student victims of sexual assault that they can get treatment confidentially and without making a police report: http://equity.missouri.edu/titleix.php. This is not just MU’s interpretation. [Based on a quick Google search many other schools interpret Title IX the same way.]

Nothing in what [ESPN] provided suggests that [the decedent] asked or authorized MU medical personnel to report a sexual assault. We’re not otherwise aware of any information to that effect.

While ESPN believed it had uncovered an emotionally-charged story that it could attempt to use as a “gotcha story” about athletes and their bad – and at times criminal – behavior, it cannot ignore the fact that mechanisms must remain in place to protect the confidential relationship between victims and their medical providers. Divulging medical information without these protections could have devastating consequences on the patient and victim.

Though excruciatingly sad and heart-breaking for a family to endure not only a rape, but a death or suicide, patients must be able to seek treatment from medical personnel in a strictly confidential environment. In that environment, hopefully the medical staff will be trained to not only assist the victim with healing her physical injuries, but also with healing her emotional and mental injuries, whether it be privately or in another, more public, manner that may result in her contacting law enforcement authorities.

In the end, however, it should be the patient’s or victim’s choice…. not that of ESPN.

Posted by Attorney Laura Gerdes Long. Long practices in tort, insurance defense, legal malpractice, health care, and employment law. Well-versed in employment law policies and processes related to HIPAA, she serves as a trainer and advisor to health care providers, insurers, self-insured employers, and municipalities.